[Marty Lederman is an Associate Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. Lederman and law professors David Golove and John Mikhail filed an amicus brief in Bond.]
Some preliminary reactions that occurred to me as I was listening to the argument in Bond v. United States this morning (transcript available here):
1. A Limiting Construction of the Treaty?
The most significant thing about the argument, perhaps—at least in terms of forecasting what the Court might do—is that Justices Kennedy and Breyer both indicated interest in whether the treaty might be construed so as not to cover some category of malicious uses of toxic chemicals that the international community would not have any obvious interest in regulating. Bond’s lawyer, Paul Clement, had suggested in his brief that the Court might construe the “peaceful purpose” exception in the treaty to exempt any non-“warlike” use of chemicals. The Solicitor General has explained why that particular construction is untenable (see pages 13-16 of his brief); and Paul appeared to concede as much this morning when he agreed that if Ms. Bond had sent sarin gas through the ducts of her victim’s house, that would not be a “peaceful” purpose, even though it would be purely local, and presumably not “warlike.”
Justices Kennedy and Breyer, therefore, were searching for another way to narrowly construe the treaty. Justice Kennedy mentioned the possibility of imposing some sort of “clear statement” rule of construction with respect to applications of the treaty that would implicate a nation’s constitutional structure. Justice Breyer, for his part, appeared to be pondering whether the Court could construe the “use” prohibition differently depending on the nature of the toxic chemicals in question—a sort of “two-tiered” construction: On the one hand (if I understood him correctly), the prohibition on use would be categorical as to those especially dangerous chemicals (including sarin) listed in one or more of the three “Schedules” in the Annex to the Convention. But at the same time the Court might read the Convention as excluding from coverage certain relatively less dangerous (because more confined) uses of all other toxic chemicals not specifically listed—uses that could not possibly, in the Justices’s view, raise any international hackles if left unaddressed. The hypothetical cases Justice Breyer had in mind were, e.g., using kerosene to burn down a barn; feeding a horse a poison potato; using a match to set fire to a haystack . . . and perhaps Bond’s own case itself. (Justice Breyer took his examples from Commonwealth v. Peaslee, 177 Mass. 267 (1901), a decision that Oliver Wendell Holmes issued on New Year’s Day, 1901, as Chief Justice of the Massachusetts Supreme Judicial Court. Justice Breyer called it a “great case on attempted murder.” Perhaps it is—the question was when extensive preparation followed by abandonment constitutes an attempt. Not surprisingly, Peaslee doesn’t have anything to do with Congress, the treaty power or chemical weapons—which might have been Justice Breyer’s point, i.e., that cases such as Bond’s are the stuff of textbook state criminal law.)
There are at least two obvious difficulties in going down this road: For one, it’s not easy to construe the language of the treaty to carve out such localized uses of certain chemicals but not others—and even more difficult, perhaps, to define in the language of a judicial opinion the category of cases that are too local, or too self-contained, to be of the sort that the treaty-makers presumably were most concerned. Secondly, as the Solicitor General explained, the international community presumably settled upon a categorical prohibition (the CWC Preamble declares that the State Parties are “[d]etermined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons”) not because each and every hypothetical covered case would raise serious international concerns, but instead because a prophylactic, comprehensive ban is conducive to ensuring that all of the cases of possible international concern are covered. The objective, in a nutshell, is to prevent various nations from deciding for themselves which uses of toxic chemicals are, or are not, worthy of international condemnation: If, for example, the United States were to define a category of cases that are, in the Court’s view, peripheral to the primary objectives of the treaty-makers, what would prevent another nation, such as Syria, from likewise construing the Convention to exclude a different category of toxic chemical use that are, in its view, not of legitimate or significant international concern?
On the other hand, it would not be the first time the Court has narrowly interpreted treaty language to avoid interference in matters falling within the traditional police power jurisdiction of the states. See, e.g., Yamataya v. Fisher, 189 U.S. 86, 97 (1903); Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380, 393-95 (1902); Edward S. Corwin, National Supremacy: Treaty Power vs. State Power at 304-06 (1913). And so, if Justices Breyer, Kennedy and/or other Justices can find their way to a construction of the CWC that would not cover Bond’s use of the particular chemicals at issue, the Court would then be able to avoid the need to decide whether to impose limits on the scope of the treaty power or on Congress’s authority to enact legislation to ensure the Nation’s compliance with its international obligations—limits that could seriously compromise U.S. foreign policy interests and that therefore were decisively rejected at the Founding and have been rejected ever since.
2. “As-Applied” Commerce Clause Affirmance?